Queanbeyan Leagues Club Ltd v Poldune Pty Ltd

[2001] NSWSC 898

CITATION:	Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 898
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3418/96
HEARING DATE(S):	9 - 11 October 2001
JUDGMENT DATE:	16 October 2001
PARTIES :	Queanbeyan Leagues Club Limited (P) GIO Australia Holdings Limited (D2) M J Armstrong (D14) GIO Personal Investment Services Limited (D15) Marshall Marks Kennedy (XD1)
JUDGMENT OF:	Hamilton J

COUNSEL :	P M Donohoe QC & A Radojev (P) M J Slattery QC & R Pepper (D2 & 15) I Bailey (D14) D L Davies SC & M T McCulloch (XD1)
SOLICITORS:	Collaery & Colquhoun (P) Barker Gosling (D2 & 15) Tress Cocks & Maddox (D14) Phillips Fox (XD1)
CATCHWORDS:	EVIDENCE [198] - Course of evidence - Reopening case and recalling witnesses - By parties - First trial of separate questions concluded - Principles applicable - PROCEDURE [95], [101] - Supreme Court procedure - Practice under Supreme Court Rules - Pleadings - In general - Applications to strike out as prejudicial or embarrassing amended defences filed without opposition - Whether prejudice or embarrassment established - Amendment - Application to revoke leave to amend.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 15 r 26, Pt 31 r 2
CASES CITED:	Coulton v Holcombe (1986) 162 CLR 1 McCarthy v McIntyre [2000] FCA 1250 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 216 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd NSWSC Hamilton J 17 December 1998 unreported Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 Tepko Pty Ltd v Water Board (2001) 75 ALJR 775 Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 Water Board v Moustakas (1988) 180 CLR 483
DECISION:	Ruling that issue of causation as between GIO and cross defendant MMK not determined. Application to reopen case to further cross examine witness refused. Applications to revoke leave to file amended defences or strike out parts as prejudicial and embarrassing refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 16 OCTOBER 2001

3418/96 QUEANBEYAN LEAGUES CLUB LIMITED v POLDUNE PTY LIMITED & ORS

JUDGMENT

1 The applications dealt with in this judgment arise from the decision of different questions in these proceedings in different trials pursuant to an order made under Part 31 r 2 of the Supreme Court Rules 1970 (“the SCR”). The policy of the Court is to make such orders sparingly because of difficulties, including difficulties sometimes unforeseen and unforeseeable, which may arise from the separate decision of questions. The High Court has recently dealt with one case in which such difficulties arose in Tepko Pty Ltd v Water Board (2001) 75 ALJR 775. The separate trials in these proceedings result from an order made by McLelland CJ in Eq on 27 March 1997, when his Honour ordered that all questions of the quantum of any damages (but not questions of contribution and indemnity) be tried separately from and after the trial of the other questions in the proceedings.

2    The proceedings were very complex, involving a plaintiff and five sets of defendants. There were a total of ten cross claims, many of which were among the existing defendants, but there were two additional parties joined by cross claim who were not otherwise parties to the proceedings. The first trial was held before me and judgment was delivered on 17 December 1998 (“my first judgment”). The facts and the nature of the proceedings are summarised in my first judgment at [1] – [17] and I refer in this judgment to the various parties in the same manner as and adopt the other definitions used in my first judgment. Whatever problems now arise from the course the proceedings have taken, it should be remembered that three of the defendants (Poldune, Gadens and the ANZ Bank) and one of the additionally joined cross defendants (Mr Landerer) were acquitted of the proceedings by my first judgment and have not had to participate in the lengthy additional interlocutory proceedings that have occurred since that time, nor will they have to participate in the four or five week trial which is now under way. This will not only be to their advantage but to the advantage of the remaining parties in the reduction of the costs burden that will be borne by them.

3    With some exceptions not material to the present applications, all the issues between the plaintiff and the defendants were resolved by my first judgment, other than the quantum of damages. The issues now to be dealt with arise under two of the cross claims, the first cross claim brought by the GIO against MMK (who were not defendants in the proceedings) and the fifth cross claim brought by the GIO relevantly against Mr Armstrong (who was a defendant in the proceedings). It is important in order to dispose of these applications to understand the issues as they were joined between those parties at the time of the first trial. MMK acted as the GIO’s solicitors on its sale of the plaza development to Poldune. Relevantly the amended first cross claim which was before the Court at the trial alleged that MMK acted as the GIO’s solicitors on its sale and transfer of the plaza development to Poldune and owed a duty of care to the GIO by reason of the terms of their retainer or arising out of the relationship of solicitor and client. It was alleged that MMK committed breaches of those duties. As a result of those breaches it was alleged that the GIO would suffer loss and damage if held liable to the plaintiff and the GIO claimed indemnity from MMK for any such liability or damages in the amount in which the GIO might be found liable to pay to the Club. By its defence current at the trial MMK pleaded in relation to causation as follows in subparagraphs 8(c) and (d) of the defence:

“(c) deny that if the Club has suffered loss and damage as alleged that such loss and damage was caused or materially contributed to by any act or omission on the part of MMK;
(d) say that to the extent that the Club has suffered loss and damage then that loss and damage was suffered by the failure of GIO to comply with the conditions of the Deed:
Particulars
(i) failing, in accordance with clause 2(b) of the Deed, to have prepared, executed and registered an instrument pursuant to s88B of the Conveyancing Act 1919 (NSW) so as to protect the rights of the Club into the future;”

Those were the issues as they stood at the time of the trial.

4    Much later and some two years after my first judgment, MMK filed in circumstances which will come to be discussed below an amended defence in which relevantly it added subparagraphs 8(e) and (f) as follows:

“(e) say that to the extent that the Club has suffered loss and damage then GIO Life’s own negligence has contributed to that loss and damage:
Particulars
(i) GIO Life failed, in accordance with clause 2(b) of the Deed, to prepare, execute and register an instrument pursuant to s88B of the Conveyancing Act 1919 (NSW) so as to protect the rights of the Club into the future;
(f) say that to the extent that the Club has suffered loss and damage such loss and damage was caused by its failure:
(i) to obtain on or about 11 August 1986 from Northbourne Shopping Centres a legally enforceable agreement whereby it obtained the right to use car parking facilities on the Property;
(ii) to have registered as soon as practicable after the execution and delivery of the first Deed of Future Arrangements on 11 August 1986, an instrument pursuant to s88B of the Conveyancing Act 1919 (NSW), as provided for by clause 2(b) of the first Deed of Future Arrangements;
(iii) to obtain on or about 29 August 1986 from GIO a legally enforceable agreement whereby it obtained the right to use car parking facilities on the Property;
(iv) To have registered as soon as practicable after the execution and delivery of the second Deed of Future Arrangements on 29 August 1986 an instrument pursuant to s88B of the Conveyancing Act 1919 (NSW) as provided for by clause 2(b) of the second Deed of Future Arrangements.”

5    In the meantime the trial took place. Mr Davies, of Senior Counsel for MMK, fairly and frankly concedes that the issue of causation as between the GIO and MMK was fought at the trial. Quite apart from Mr Davies’ concession, the issue was open on the pleadings, as appears in [3] above, and it is clear from the cross examination of witnesses, particularly the GIO’s Mr Stackpool, by Mr McCulloch, of junior counsel for MMK, who appeared without a leader at the trial, and from the written and oral submissions put at the trial, that the issue was contested.

6    The orders that I made on 24 December 1998 arising out of my first judgment did not include any order relating to the cross claim between the GIO and MMK. The reason for this was that I only made orders on that occasion where it was possible finally to determine causes of action between parties and it was by these orders that Poldune, Gadens, the ANZ Bank and Mr Landerer were acquitted of the proceedings.

7    Subsequently, MMK pressed me to make a declaratory order in respect of my findings against it so that it might seek to take those findings to the Court of Appeal during the hiatus in the proceedings in the hope that by overturning those findings it could get itself acquitted of the proceedings before their trial was resumed. As the orders, if made, would be interlocutory not final, this would require the leave of the Court of Appeal. I had grave doubts as to whether this was a sound course, but was persuaded that I ought not prevent MMK from pursuing that course and having the determination of the Court of Appeal as to whether it would allow an appeal to be conducted in such circumstances. I delivered judgment to that effect on 7 March 2000: Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 216 (“my second judgment”). In my second judgment at [1] I clearly stated that the issues decided in my first judgment were duty and breach. Pursuant to that judgment on 20 April 2000 I made a declaration as follows:

“Upon the First Cross Claim the Court declares that in failing to convey to the Cross Claimant what information it had concerning caveat No W504147 and in failing to make further enquiry concerning the Deed of Future Arrangements referred to in the said caveat the First Cross Defendant breached its duty of care to the Cross Claimant.”

That declaration was cast in terms which excluded any suggestion that the issue of causation had been decided.

8    When MMK’s application for leave to appeal came on before the Court of Appeal on 6 November 2000, Mr Davies submitted to the Court of Appeal that I had decided the issue of causation and sought to have their Honours review my decision of that issue as well as my decision of the issues of duty and breach. The application was not determined by their Honours (Priestley and Fitzgerald JJA and Davies AJA) because, after some debate in the Court of Appeal, MMK withdrew its application and it was dismissed by consent.

9 One of the many occasions on which the matter was before me for further directions was 8 December 2000. On that day also was returnable a motion brought by MMK for an order under Part 31 r 2 for the determination separately and before any other issue in the proceedings of the question of causation between the GIO and MMK or, alternatively, for the delivery of supplementary reasons as to whether it was open for MMK to adduce evidence and submit at a further hearing that the first cross claimant had suffered no loss as a result of the breach found. I did not consider the making of a further order for separate decision an appropriate course and dismissed the motion. However, I did state clearly on that occasion that it was my view that I had not determined the question of causation in my first judgment. Although the question of whether further evidence might be adduced by MMK was raised in one of the prayers in the notice of motion returnable that day, I was not at that time asked to make any determination concerning that. Furthermore, it was on that day that MMK sought to file the amended defence to cross claim containing subparagraphs 8(e) and (f) set out in [4] above. Mr Garling, of Senior Counsel, who appeared on that occasion for the GIO, as he had at the trial, expressly stated that he did not oppose nor consent to that course. He shortly thereafter stated that “the question of causation as between MMK and GIO remains open”. He again referred later in the directions hearing to causation as one of the issues that remained to be determined between the GIO and MMK at the second trial. The only rider that Mr Garling put upon the GIO’s non opposition to the filing of the amended cross claim was that he reserved the right on behalf of the GIO to contend that Mr Stackpool should not be called for further cross examination at the second trial as a result of the filing of the fresh defence to cross claim. Despite numerous further directions hearings it was not suggested again before me on behalf of the GIO that the issue of causation was closed until after the second trial commenced before me last Monday, 8 October 2001. Equally, despite the fact that MMK’s desire to cross examine Mr Stackpool further was mentioned on that occasion, that matter was not pressed on MMK’s behalf till last week.

10    Three applications were made last week as between the GIO and MMK. Two of these applications have been made orally without notice of motion and in each case it is my view that it is appropriate that they have been made in that way.

11    The first is an application by the GIO that I determine whether or not the issue of causation has been decided by me or remains open at the second trial. Mr Slattery of Queen’s Counsel, who now appears for the GIO, contends that the issue of causation was decided by me and is not now open. Mr Davies for MMK, although it was he who contended to the contrary in the Court of Appeal, has now repented of that position and contends that the issue has not been decided and is still open.

12    The second application is an application by MMK that it ought be allowed to cross examine Mr Stackpool further, although the GIO has announced that it does not propose to call him as a witness or lead any further evidence from him at the second trial. It has also contended that MMK’s application to cross examine Mr Stackpool further is one that could or ought only be made by notice of motion and ought not be allowed to be made by oral application. However, I have determined that that is not correct and it is an appropriate application to be made orally.

13 Thirdly, the GIO has applied by notice of motion (and in the case of this application a notice of motion is appropriate) that I should revoke the leave granted to file the amended defence filed on 8 December 2000 or, alternatively, strike out portions of it, particularly subparagraphs 8(e) and (f), as tending to prejudice or embarrass the proceedings within the meaning of Part 15 r 26 of the SCR.

14    As to the first application, it is contended that I did in fact make a finding of causation in my first judgment. The portions of my first judgment in which I deal with this subject matter are [54] and [55]. I also made at the end of my first judgment a summary of my conclusions. In the substantive portion of my judgment, in [54], I stated in two places that my conclusion was that MMK was guilty of a breach of a duty of care which it owed to the GIO, but I expressed no finding as to causation of damage. Unfortunately, I stated in the summary in [65](2) that I found MMK guilty of negligence. The contention that I finally determined the question of causation in my first judgment is based on two sentences in [54] concerning what might have occurred had Mr Halliday of MMK mentioned to Mr Stackpool the information concerning the caveat that had come to his knowledge, together with the statement I have mentioned in the summary in [65](2).

15    The reason why there was difficulty in finally determining issues of negligence at the first trial was that it became apparent during the course of the trial that there was an overlap between the issues of liability and damages. That was because, even if various parties were guilty of breaches of duty owed to other parties, there was a serious question as to whether any damage had been suffered by the Club as a result of the breaches of duty complained of, and the question of whether there was any damage was something that could be determined only after the trial of the quantum issues. These were avowedly not included in the trial which I was conducting by reason of the order for separate decision of questions and no party was prepared to fight them at the trial. Since a finding that damage was caused by the breach of duty is necessary to complete a cause of action in the tort of negligence, no final finding of negligence could be made.

16    The situation is further complicated by the fact that the proposition that a plaintiff in negligence must have suffered damage caused by the breach of duty to have a cause of action contains two elements. One element is that there is some damage, the other element is that that damage was caused by the breach of duty. It is at least awkward to make the finding of causation before it is determined whether there was anything that amounted to damage.

17    Great reliance is placed is placed on the two sentences in [54] of my first judgment mentioned in [14] above. Whilst their subject matter is not directly relevant to the existence of a duty of care or whether Mr Halliday’s acts or omissions amounted to a breach of it, the matter was mentioned by me in the consideration of the framework in which those questions were to be determined and their consequences spelt out. It is quite apparent from my statements before and after those sentences that the issues I was dealing with in that determinative paragraph were the issues only of existence and breach of duty. My incorrect summary in [65](2) of what I found was unfortunate. I had not found negligence against MMK, but only the existence of a duty of care and its breach. The context of the latter statement is an attempt shortly to summarise my findings at the end of the judgment so as to show the overall position of the proceedings. The statement was not intended to and, in the context, plainly did not constitute a finding of causation, particularly in view of the careful statement in [54] of exactly what it was that I was determining. It was not my intention to determine the issue of causation and, on a fair reading, my first judgment does not state that I had determined it. Whilst the remarks of their Honours of the Court of Appeal were made arguendo and in no way constituted a decision of that Court, it is instructive that their Honours, upon reading my first judgment, took the same view. Furthermore, I am not much impressed by the contention that a final decision as to causation was made by my first judgment emanating from a party which has solemnly stated by senior counsel that that question was not determined by my judgment and did not depart from that position for about a year. The question of causation is, therefore, open for decision, although, I repeat, it was, as conceded by Mr Davies, fought out at the first trial.

18 Mr Slattery did raise, at least shortly, two other matters as to finality of issues litigated at the first trial. These were issues as between the defendants and the plaintiff, as to substantive defences raised by the defendants. The first was the issue of the plaintiff’s contributory negligence. The contention that this had not been finally determined he ultimately abandoned, conceding that it had, which was clearly correct: see my first judgment at [49]. He did contend, and persist in his contention (though not, I think, with his usual vigour), that the defence of laches and acquiescence remains open. However, in my view, it does not. I need say no more than that a reading of my first judgment at [47] makes that quite clear.

19    The two remaining applications in respect of the defence and of the recall of Mr Stackpool for further cross examination are inter-related. This is because, on the one hand, the question of whether the amendment of the pleading could prejudice or embarrass the proceedings and, on the other hand, the ambit of the proposed additional cross examination of Mr Stackpool are related.

20    The amendment was carried out without opposition. It was effected nearly two years after my first judgment. It relates to the issue of causation which, as I have just ruled, was not decided at the first trial and remains open. It is contended that the lack of opposition was per incuriam; the final form at least of the proposed amendment, it is said, had been delivered to the GIO only on the day preceding the directions hearing at which the amendment was made without opposition. This contention is hard to accept. That was a day when both the GIO and MMK were present by senior counsel to deal with what were the ongoing issues in the trial and questions as to what the evidentiary situation might be. It was in that context that senior counsel solemnly announced that the amendment was not opposed, and everybody thereafter proceeded for some 10 months on the basis that that amended defence was on. It was only last week that that situation was departed from. It should be repeated, however, that Mr Garling did at the time reserve the right to object to any further cross examination of Mr Stackpool, so that there can be no suggestion that the GIO is closed out by its earlier conduct of the argument that Mr Stackpool should not be cross examined further.

21    The application that the amendment should be disallowed is put on two bases. The first is that the leave to amend should be revoked; that it was per incuriam that the amendment was not opposed; and that the Court did not turn its mind to or adjudicate upon the merits of allowing the amendment. The last proposition is undoubted. The Court, in face of the lack of opposition by senior counsel, did not consider the appropriateness of the amendment. The first proposition, that the lack of opposition was per incuriam, I do not accept, as I have indicated. The second basis on which the application is put is that the pleading or part of it may be struck out under Part 15 r 26 and that the lack of opposition to its filing is not a barrier to that course. I do not doubt that the Court has power strike out the relevant paragraphs if it deems it appropriate to do so. However, whether there is any question of prejudice or embarrassment arising from the amendment depends in part on what additional material is sought to be led or relied on in support of the new portions. In this regard, Mr Davies has made it plain that, apart from the desired further cross examination of Mr Stackpool, there will be no additional evidence led on causation. There will be adversion in submissions to oral evidence and documents already tendered, but no additional evidence.

22    So far as the principles on which the discretion to allow a case to reopened and additional evidence led is concerned, the relevance of various authorities has been pressed on me, particularly by Mr Slattery. Those authorities include Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 and McCarthy v McIntyre [2000] FCA 1250, a decision of the Full Court of the Federal Court of Australia. The latter case concerned a situation where the matter had been remitted to the trial Judge for further findings after the success of a first appeal. Their Honours (Whitlam, Emmett and Hely JJ) said at [30], [31]:

“[30] Where an application is made to reopen on the basis that new or additional evidence is available, it would be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. Even if that hurdle is passed, different considerations will apply depending upon whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered. In the former situation, the primary consideration should be that of embarrassment or prejudice to the other side. However, in the latter situation, the appeal rules relating to fresh evidence provide a useful guide as to the manner in which the discretion to reopen should be exercised - Smith v NSW Bar Association (1992) 176 CLR 256 at 266-7.

[31] The present case is clearly in the second category just referred to. That is to say, the hearing was complete and judgment had been given. Thus, the relevant considerations are not simply lack of prejudice to the McIntyres but the considerations that would be relevant to an application to adduce further evidence on appeal. As just indicated, there was no evidence that would justify the grant of leave to adduce further evidence on appeal.”

The overriding principle, whether or not the case is one where judgment has been delivered, was stated by the Court of Appeal in Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 at 478 per Clarke JA (with whom Mahoney and Meagher JJA agreed) to be as follows:

“The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be.”

In that case the defendant closed its case one afternoon and commenced final address at about 3.15pm. The next morning the defendant sought to reopen its case to call a witness it had not called the day before. Not only was there no question of judgment having been delivered, but the plaintiff had not yet addressed the Judge. The Judge refused the application to reopen. The conclusion of the Court of Appeal was, as stated by Clarke JA at 479:

“I would conclude, therefore, that the evidence which the appellant sought to lead was relevant and important and his Honour erred in failing to allow the appellant to re-open. In these circumstances the appeal should be upheld and a new trial ordered.”

23    This case falls somewhere between the two classes. There had been what purported to be a complete agitation of the issue of causation between the GIO and MMK. Judgment had been delivered on a number of issues between the parties but, as I have ruled above, that judgment did not extend to a final determination of that issue of causation. But there had been a final determination of at least one other issue to which Mr Stackpool’s evidence had some relevance, namely, the question of whether and in what circumstances there had been a breach of contract by the GIO vis a vis the plaintiff. Certainly the governing principle is whether in reality the dictates of justice require or do not require the reopening to be permitted. I doubt whether in this context “fresh evidence” issues are material in any event.

24    There are three matters which it is said are desired to be agitated in the renewed cross examination of Mr Stackpool. The first is that Mr Davies says that it is some three years since Mr Stackpool was cross examined before me; that I must in that time have forgotten his demeanour; that I expressed no conclusion about Mr Stackpool’s credibility in my first judgment; and that cross examination ought be allowed to refresh my impression of that demeanour. I do not regard this as providing any proper basis at all for further cross examination of Mr Stackpool. Whilst it is not embodied in my first judgment, no doubt because I did not reach a final conclusion on the matter of causation to which Mr Stackpool’s evidence is largely directed, I did express during argument at a trial a tentative view of my conclusions concerning Mr Stackpool as a witness. That appears in the transcript as follows:

“Let me make it plain that I am not saying that I am necessarily inclined to accept everything that Mr Stackpool said. What I meant to convey was that he was a witness who impressed me and that he seemed to be prepared to try from time to time to give his honest recollection about matters without necessarily leaning over backwards to get the best thing out, from his point of view, or his organisation’s point of view. Unlike some witnesses who, whilst I don’t think they were dishonest, were very anxious to, as it has been drawn to my attention in submissions, to proceed from certain assumptions and very much desiring to achieve certain results. Like all others, he is thinking back over a very long time and his recollection about matters may very well not be accurate, apart from anything else.”

That was at the time and has remained my view of Mr Stackpool as a witness. Furthermore, despite the passage of time (for which the Court is not responsible), as well as having the advantage of Mr Stackpool’s answers recorded in the transcript, I do have a recollection of Mr Stackpool’s demeanour.

25 The other subject matters as to which it is said it is desired to cross examine Mr Stackpool are, first, as to what systems, in view of the fact that it seems that the Deed of Future Arrangements and the necessity to register a s 88B instrument had been forgotten, were maintained in the GIO for keeping track of matters that required to be attended to. The other matter as to which it is said that further cross examination is desired is the payment by the plaintiff of electricity bills for lights in the car park, which it is suggested may have jogged Mr Stackpool’s memory. It is said that it did not occur to Mr McCulloch, who, as I have said above, was the cross examiner, that these subject matters should be put to Mr Stackpool at the time. However, as Mr Davies has conceded, the issue of causation, although not decided, was fought out at the time. The subject matter of Mr Stackpool’s recollection and the reasons for any lack of it were agitated at length in the cross examination. Unless there is some significantly new subject matter raised by the amended pleading and the amendment is allowed to stand I do not think that the interests of justice require the allowance of further cross examination in the circumstances. But in my view it appears from an examination of the terms of the existing and the amended pleadings, as I have set them out in proximity to each other in [3] and [4] above, that the amended defence does not raise any significantly new subject matter. The added provisions traverse in different ways essentially the same subject matter of causation as was already traversed by the existing subparagraphs 8(c) and (d) which were in contest at the first trial. That being so, in my view it is not established that there is any requirement of justice for the allowance of any further cross examination.

26    Among the factors I have taken into consideration in reaching this conclusion are that, in my view, there is a potentiality in allowing reopening for reagitation directly or indirectly of matters which have been already determined between parties in these long and expensive proceedings. Any substantial reagitation could be to the prejudice of more parties than the GIO and MMK. Furthermore, three years have been allowed to pass before the GIO has made this application. As this was matter fought out in the last trial, there was absolutely no necessity to await the next trial before further cross examination was pressed for. The evidence suggested that the witness, whom I took to be an honest witness, had already by 1993 had his recollection dimmed of events going back to 1986 in which he had participated. Furthermore, by 1998, when he gave evidence, his recollection of what occurred in 1993 was receding into the past. Now he (having in the meantime left the employ of the GIO) is sought to be recalled, after a careful and considered cross examination in 1998 by counsel for MMK, to be further cross examined about essentially the same subject matter. Perhaps if there were the potentiality for the revelation of some significant new piece of evidence, so that it would be unsatisfactory in the interests of justice for the matter to be determined in the absence of that revelation, these weighty considerations might be overcome. But there is nothing before me that suggests that; the questions sought to be put seem at best to raise somewhat different aspects of the same matter as were put to the witness in cross examination on the last occasion. All in all, so far as I can see on the material before me, the likelihood of the cross examination proposed making any difference to the Court’s assessment of either Mr Stackpool’s credibility or any of the factual matters to be adverted to in determining the issue of causation between the GIO and MMK appears to be slight. And if a “fresh evidence” test were applicable, this material would not meet it.

27    Once the situation is reached that no further evidence on the subject matter of causation is to be called, the decision on whether nor any embarrassment or prejudice is likely to arise from the amended pleading becomes clear. The body of evidence remaining the same, there is no difficulty in argument being put on the same body of evidence on the defences as somewhat differently formulated. Even on appeal, an amendment to a pleading may be allowed where it appears appropriate if its effect is to put a different legal characterisation on an aspect of the matter on the same body of facts and there is no reason to think the trial would have been conducted differently had the amendment been made at the time: Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8; Water Board v Moustakas (1988) 180 CLR 483 at 497. I have already said that the subject matter of the amendment is not radically different from the pleading as it stood. No suggestion has been put to me that the course of the trial would have been altered. No prejudice or embarrassment from the amendment being allowed to stand is established.

28    Although not formally included in its notice of motion, the GIO also made the same applications in relation to Mr Armstrong’s amended defence to cross claim, which was filed by leave on 19 September 2001. At that time Mr Armstrong was appearing for himself. The filing was either consented to or not opposed by the GIO. Paragraphs 6(c), (d), (e) and (f) correspond with paragraphs 8(c), (d), (e) and (f) of MMK’s amended defence. Unlike MMK’s defence Mr Armstrong did not include subparagraphs (c) and (d) in his original defence. But, as they are identical with subparagraphs that were always in MMK’s defence, they occasion no problem. Mr Bailey, of counsel for Mr Armstrong, indicated that he did not wish to call any further evidence in support of the amended defence. Indeed, he did not wish to rely on paragraph 6(f) at all, though he did wish to maintain paragraph 6(e). In view of the lack of objection at the time of the amendment, the lack of change proposed to the evidentiary situation and my refusal to allow the application in relation to paragraph 8(e) of MMK’s amended defence, the applications in relation to the revocation of leave and the striking out of paragraph 6(e) should also fail. Paragraph 6(f) should probably be struck out by consent to simplify the record.

…oOo…

Last Modified: 10/22/2001